John Kroger Plays It Cool

The ink was barely dry on the health care reform legislation when 14 attorneys general from states across the country - including Rob McKenna up in Washington - rushed to file a lawsuit claiming that it's unconstitutional.

To his credit, Oregon Attorney General John Kroger didn't join the stampede. "Based on a preliminary review of the legislation," Kroger's office announced, "the Oregon Department of Justice is of the opinion that the health care reform bill is constitutional and that the challenges to the legislation are without merit. Legal scholars around the nation have expressed similar views. As a result, Attorney General Kroger will not waste taxpayer dollars on filing meritless litigation."

The constitutional challenge to health care reform rests on two shaky legal pillars. The first is the state's rights argument - the claim that Congress is overstepping its bounds by making the states pick up part of the cost of expanding Medicaid.

That argument is as flimsy as a $10-a-month health insurance policy. Article six of the Constitution unequivocally declares that laws made by Congress "shall be the supreme law of the land, and the judges in every state shall be bound thereby."

The "state sovereignty" claim was used during the 1950s by Southern states trying to block federal desegregation efforts. That dog wouldn't hunt 60 years ago and it's even more lame and decrepit now.

The second pillar - the argument that the federal government is doing something unconstitutional in requiring people to buy health insurance - is slightly stronger. But even in this case, the consensus of most legal scholars is that the challenge doesn't have a chance.

The health care reform legislation was carefully crafted so that the individual mandate is justified under both the taxing authority of Congress - persons who refuse to comply will have to pay a tax - and the federal government's power to regulate interstate commerce. For more than 70 years the courts have interpreted those powers very broadly. For example, the present Supreme Court has ruled that the interstate commerce clause gives Congress power to prohibit growing marijuana, even if somebody is just cultivating a few plants for personal use.

In challenging health care reform, the 14 attorneys general seem to care less about constitutional purity than about playing to the cheap seats in right field - deep, deep right field. Or maybe, as Rutgers University law professor Frank Askin put it, they're throwing "a Republican Hail Mary pass in the desperate hope that the conservative Supreme Court majority will rescue them as it did the George W. Bush campaign in 2000 in Bush vs. Gore."

It's impossible to predict what the conservative and blatantly partisan Roberts court might do; the Republicans just might complete that Hail Mary pass. If they don't, the attorneys general who joined in the suit will have a hell of time explaining to the taxpayers of their states why they threw their money away on a harebrained scheme.

Oregon's John Kroger had the good sense not to - and in gratitude for that he's receiving the GLASS SLIPPER.

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